State v. McCartney, No. 101457.

CourtSupreme Court of West Virginia
Citation719 S.E.2d 785,228 W.Va. 315
Decision Date17 November 2011
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Arnold Wayne McCARTNEY, Defendant Below, Petitioner.
Docket NumberNo. 101457.

228 W.Va. 315
719 S.E.2d 785

STATE of West Virginia, Plaintiff Below, Respondent
v.
Arnold Wayne McCARTNEY, Defendant Below, Petitioner.

No. 101457.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 2011.Decided Nov. 17, 2011.


[719 S.E.2d 789]

Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “The determination of what is good cause, pursuant to W.Va.Code, 62–3–1, for a continuance of a trial beyond the term of indictment is in the sound discretion of the trial court, and when good cause is determined a trial court may, pursuant to W.Va.Code, 62–3–1, grant a continuance of a trial beyond the term of indictment at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus Point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981).

3. “Where the trial court is of the opinion that the state has deliberately or oppressively sought to delay a trial beyond the term of indictment and such delay has resulted in substantial prejudice to the accused, the trial court may, pursuant to W.Va.Code § 62–3–1, finding that no good cause was shown to continue the trial, dismiss the indictment with prejudice, and in so doing the trial court should exercise extreme caution and should dismiss an indictment pursuant to W.Va.Code § 62–3–1, only in furtherance of the prompt administration of justice.” Syllabus Point 4, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981).

4. “ ‘ “Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule.” Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).’ Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).” Syllabus Point 2, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

5. “A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

6. “The preliminary issue of whether a sufficient chain of custody has been shown to permit the admission of physical evidence is for the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.” Syllabus Point 2, State v. Davis, 164 W.Va. 783, 266 S.E.2d 909 (1980).

7. “ ‘ “The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admissibility of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary ... rulings of the circuit court under an abuse of discretion standard.” Syllabus Point 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).’ Syllabus Point 9, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002).” Syllabus Point 2, State v. Harris, 216 W.Va. 237, 605 S.E.2d 809 (2004).

[719 S.E.2d 790]

8. “A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.” Syllabus Point 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

9. “The question of whether a jury was properly instructed is a question of law, and the review is de novo. Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

10. “Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” Syllabus Point 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

11. “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syllabus Point 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

12. “The misspelling of words or typographical errors are not fatal to an indictment, where they do not affect the sense, and the meaning of such words can be determined with certainty by a person of ordinary intelligence.” Syllabus Point 1, State v. Rudy, 98 W.Va. 444, 127 S.E. 190 (1925).

13. “The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

14. “A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Dennis J. Willett, Esq., Steven B. Nanners, Esq., Nanners & Willett, L.C., Buckhannon, WV, for Petitioner.

Darrell V. McGraw, Jr., Esq., Attorney General, Thomas W. Rodd, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Lewis

[719 S.E.2d 791]

County entered on May 10, 2010. In that order, Arnold Wayne McCartney (hereinafter “the petitioner”) was sentenced to life imprisonment without mercy for his conviction of first degree murder, following a jury trial that began on February 16, 2010. In this appeal, he asserts that the circuit court erred by: 1) failing to conduct his trial within one term of court; 2) ruling that a statement taken by the investigating officer was admissible; 3) improperly admitting the murder weapon into evidence at trial despite the State's failure to establish a chain of custody; 4) admitting certain testimonial evidence relating to the victim's cause of death; 5) not affording the petitioner the opportunity to present a closing argument during the “mercy” phase of the trial; 6) including an improper jury instruction; and 7) failing to address improper prosecutorial statements during the closing arguments. The petitioner further argues that the cumulative effects of these errors warrants reversal of his conviction. He also asserts that his conviction should be reversed because the indictment was fatally defective. Finally, the petitioner argues that the evidence was insufficient to support his conviction. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court is of the opinion that the circuit court did not commit reversible error and, accordingly, affirms the decision below.

I.
FACTS

On December 20, 2008, the petitioner was arrested at his home in Lewis County, West Virginia, for shooting his fiancee, Vickie Paige (hereinafter, the “victim”), in the head at point blank range with a Wesson Firearms Model 41 revolver. The victim was killed instantly. At the time of the shooting, the couple's four-month-old-son was in another room of the home.

Brian Joseph, a friend of the petitioner who had been staying with the petitioner and victim, was not present when the shooting occurred. Mr. Joseph, however, was at the home approximately thirty minutes prior to the victim's murder. At trial, Mr. Joseph explained that he was sitting in the living room and heard several “thumping” noises that sounded like a heavy object hitting the floor and wall of the bedroom where the petitioner and the victim were located. Believing that the petitioner was being physically abusive to the victim, Mr. Joseph looked in the bedroom and noticed the victim on the floor. Mr. Joseph then confronted the petitioner about what he was doing and said, “Arnie, please don't.” According to Mr....

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16 practice notes
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...sought to delay the trial nor is there a showing that the delay caused any substantial prejudice to [Mr. Corey].” State v. McCartney, 228 W.Va. 315, 324, 719 S.E.2d 785, 794 (2011). Although the record does not disclose the nature of the prosecutor's surgery, there is no evidence showing th......
  • State v. Chic-Colbert, No. 12–1121.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2013
    ...and the meaning of such words can be determined with certainty by a person of ordinary intelligence.’ ”); see also State v. McCartney, 228 W.Va. 315, 719 S.E.2d 785 (2011) (error in spelling of victim's name typographical error that did not affect substance of allegations in indictment); Pe......
  • State v. Jeremy S., No. 19-0006
    • United States
    • Supreme Court of West Virginia
    • June 8, 2020
    ...trial[,] nor is there a showing that the delay [of the trial] caused any substantial prejudice to the petitioner." State v. McCartney , 228 W. Va. 315, 324, 719 S.E.2d 785, 794 (2011). Likewise, we do not believe that the State acted "intentionally or oppressively" in this case or that Peti......
  • State v. Simmons, No. 15-0715
    • United States
    • Supreme Court of West Virginia
    • June 16, 2017
    ...S.E.2d 261 (1982), as amended.Syl. Pt. 1, State v. Guthrie , 173 W.Va. 290, 315 S.E.2d 397 (1984).Nevertheless, in State v. McCartney , 228 W.Va. 315, 719 S.E.2d 785 (2011), while we cited the principle established in Persinger and Guthrie , we noted that our prior decisions on numerous occ......
  • Request a trial to view additional results
17 cases
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...sought to delay the trial nor is there a showing that the delay caused any substantial prejudice to [Mr. Corey].” State v. McCartney, 228 W.Va. 315, 324, 719 S.E.2d 785, 794 (2011). Although the record does not disclose the nature of the prosecutor's surgery, there is no evidence showing th......
  • State v. Chic-Colbert, No. 12–1121.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2013
    ...and the meaning of such words can be determined with certainty by a person of ordinary intelligence.’ ”); see also State v. McCartney, 228 W.Va. 315, 719 S.E.2d 785 (2011) (error in spelling of victim's name typographical error that did not affect substance of allegations in indictment); Pe......
  • State v. Jeremy S., No. 19-0006
    • United States
    • Supreme Court of West Virginia
    • June 8, 2020
    ...trial[,] nor is there a showing that the delay [of the trial] caused any substantial prejudice to the petitioner." State v. McCartney , 228 W. Va. 315, 324, 719 S.E.2d 785, 794 (2011). Likewise, we do not believe that the State acted "intentionally or oppressively" in this case or that Peti......
  • State v. Simmons, No. 15-0715
    • United States
    • Supreme Court of West Virginia
    • June 16, 2017
    ...S.E.2d 261 (1982), as amended.Syl. Pt. 1, State v. Guthrie , 173 W.Va. 290, 315 S.E.2d 397 (1984).Nevertheless, in State v. McCartney , 228 W.Va. 315, 719 S.E.2d 785 (2011), while we cited the principle established in Persinger and Guthrie , we noted that our prior decisions on numerous occ......
  • Request a trial to view additional results

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